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Jab to work – Can employers require employees to be vaccinated?

A ’jabs for jobs’ policy, though popular, is risky

A ’jabs for jobs’ policy, though popular, is risky

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Image of Donna Sharp

Partner, KPMG Law

KPMG in the UK

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Also on home.kpmg

The UK and its devolved governments have not made the Covid-19 vaccine mandatory. Therefore, it would be risky for employers to insist that employees be vaccinated. Nonetheless, there may be limited circumstances where asking employees to be vaccinated as a condition of their employment would be categorised as a ‘reasonable instruction’ (e.g. if there is a business requirement to travel overseas or work with vulnerable people).

In this article, we consider the key risks to employers of implementing a mandatory vaccination requirement.

What are the key risks to employers?

Discrimination

Any employer vaccination policy will need to include exceptions for employees with potential characteristics in order to avoid potential discrimination issues. In particular, the vaccines may not be suitable for everybody including:

  •  Individuals with suppressed immune systems: which gives rise to potential disability discrimination as employees may not be able to receive a vaccine due to health conditions.
  • Some women: Indirect pregnancy or sex discrimination may arise as the vaccine is not recommended for those that are pregnant, planning a pregnancy or breastfeeding.
  • Certain age groups: Older workers will be more likely to receive a vaccine through the NHS (based on the current immunisation program) over younger workers, giving rise to potential age discrimination issues.

It is also possible that certain religious or moral objections to the vaccine could be protected under the protected characteristic of religious or philosophical belief. For example, gelatine derived from pigs is often used in mass produced vaccines. This may also be a concern for vegan or vegetarian employees.

Effect of vaccination on workplace health and safety measures

Under UK Health & Safety law, employers must provide a safe working environment to their employees and the Government’s guidance notes on Covid-Safe workspaces remain central to workplace safety during the pandemic. While it is arguable that the vaccine can be introduced as part of an employer’s Covid-Safe measures, companies should be cautious about treating the vaccine as a replacement for other measures, such as social-distancing and increased hygiene, particularly as it will take a long time before sufficient numbers of the working population are vaccinated to warrant removing other Covid-Safe measures. Further, it is unlikely that any vaccine will be 100% effective.

Data Protection

Any personal data that is collected by an employer from employees in connection with their vaccination will require a data protection impact assessment and processed in accordance with GDPR and Data Protection Act 2018.

In doing so, employers must carefully consider whether it is necessary and appropriate to collect data on employee vaccine take up and how they will keep it secure.

Alternatives to mandatory vaccination

For most employers, it is advisable to encourage employees to receive the vaccine instead of mandating it, considering the risks illustrated above.

This can be achieved through an effective internal communication strategy and employee engagement. Employers can inform staff about the advantages of vaccinations and the benefits of mass immunisation, which may contribute towards voluntary take-up of the vaccine. 

How KPMG can help

KPMG advises on all aspects of the impact of coronavirus on employment law and provides a range of services in a practical and commercial manner. For further advice, contact Donna Sharp, Solicitor and Partner in KPMG Law.

"For most employers, it is advisable to encourage employees to receive the vaccine instead of mandating it. This can be achieved through an effective internal communication strategy and employee engagement."

© 2021 KPMG LLP a UK limited liability partnership and a member firm of the KPMG global organisation of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee. All rights reserved.

For more detail about the structure of the KPMG global organisation please visit https://home.kpmg/governance.

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